It Is Improper To Consider A Parent’s Work Obligations In Awarding Custody To The Other Parent

In a dispute between parents over custody of their children the court awards custody based upon the children’s best interests. There are certain factors the court must consider when determining best interests including the health, safety and welfare of the child; history of abuse by a parent; the nature and amount of contact with the parents; and drug and or alcohol abuse. See Family Code, Section 3011.

Our Supreme court in the case of Burchard v Garay, (1986) 42 Cal.3d 531 reversed a trial court that awarded custody of a child to father. The trial court awarded custody to father because he was in a better economic position; due to remarriage father could provide for care in the home while mother relied on day care due to her work and finally that father was more willing to provide the mother with visitation. The Supreme Court in reversing noted that economic disparity could be address by support and that “…In an era when over 50% of mothers and almost 80% of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of her child.”

More recently the rule was applied in Marriage of Loyd, 2003 DJDAR 2437 where mother sought modification of custody from father to her because father worked and she as a homemaker could care for the child during the day. The trial court granted the request and the court of Appeal reversed for improperly considering father less qualified to care for the child due to his work schedule.